When is judicial activism appropriate?

Geoffrey R. Stone

The Supreme Court's consideration of the constitutionality of the Patient Protection and Affordable Care Act has renewed debate about judicial activism versus judicial restraint. Liberals have warned that a U.S. Supreme Court decision invalidating this act would represent unwarranted judicial activism. In response, conservatives have accused liberals of hypocrisy. After all, if liberals celebrated the judicial activism of the Warren court, why should they decry the judicial activism of the Roberts court?

This accusation is unfounded, but it carries considerable weight in public discourse. I want to set the record straight.

At the outset, it is necessary to explain the difference between judicial activism and judicial restraint. When a court exercises restraint, it generally defers to the judgment of the elected branches. Even in the face of a claim that a particular law violates the Constitution, the court gives the elected branches the benefit of the doubt and upholds the challenged law as long as it is reasonable. When a court engages in judicial activism, it second-guesses the judgment of the elected branches and invalidates the law unless the government can prove to the court that the law is clearly constitutional.

A decision to invalidate the Affordable Care Act would clearly be an example of judicial activism, because the court would be second-guessing the elected branches rather than deferring to their judgment about the impact of millions of individual decisions about health insurance on interstate commerce.

The central question in constitutional law is: When is judicial activism appropriate? The best answer, which is grounded in the vision of the framers and has been a central part of constitutional law for more than 70 years, is that judicial activism is appropriate when there is good reason not to trust the judgment or fairness of the majority. It is in that situation when it is most important for judges to intervene to enforce the guarantees of the Constitution.

As Alexander Hamilton observed in the Federalist Papers, we must rely upon judges who have life tenure and are thus insulated from political pressure to protect "the rights of individuals from the effects of those ill humours which … sometimes disseminate among the people." In other words, judicial deference is inappropriate when there is good reason to believe that prejudice, intolerance or bigotry has tainted the fairness of the political process.

Invoking this understanding of judicial responsibility, the Supreme Court issued a series of decisions that faithfully interpret and apply the Constitution in circumstances in which judicial activism was most necessary to guard against such majoritarian dysfunction. These decisions ended racial segregation, recognized the principle of "one person, one vote," forbade government suppression of political dissenters, established an effective right to counsel for persons accused of crime, struck down government discrimination against women and upheld the right of "enemy combatants" to due process of law, to cite just a few examples. What these decisions have in common is that they protect the rights of the powerless. Such decisions animate the most fundamental aspirations of our Constitution and are necessary and proper examples of judicial activism.

By contrast, we have now entered a troubling era of conservative constitutional jurisprudence. It is best characterized as "conservative activism." Justices who readily dismiss constitutional claims by women, political dissenters, persons accused of crime, and racial, ethnic and religious minorities, but at the same time aggressively strike down restrictions on corporate political expenditures, gun control laws, affirmative action programs and the laws of the state of Florida in the 2000 presidential election, have effectively hijacked the power of judicial review.

Conservative justices today exercise that power in a highly selective and politicized manner that cannot credibly be explained by any principled theory of constitutional interpretation. Indeed, this pattern of decisions raises grave questions about the considerations that actually drive the jurisprudence of our conservative justices.

It is fundamentally misleading to equate activist decisions that protect the interests of corporations, the National Rifle Association and the wealthy with activist decisions that safeguard the rights of African-Americans, women, gays, political dissenters and persons accused of crime. The courts are needed to vindicate the rights of the latter. They are not needed to protect the interests of the former, who can protect themselves quite well in the give-and-take of the democratic process.

The Affordable Care Act case is a perfect case for judicial restraint. If the states that brought the suit want to change the law, they can do it through the political process. That is the point of democracy. They do not need the justices of the Supreme Court to do the job for them.